State of Connecticut v. Richard Koslik (2012)

MEMORANDUM OF DECISION REGARDING MOTION TO CORRECT ILLEGAL SENTENCE

The Defendant in the above-entitled matter has filed a Motion to Correct Illegal Sentence, pursuant to the provisions of Practice Book § 43–22.¹  The following procedural history of the case is relevant to the determination of this motion:

The Defendant was convicted following a jury trial in January 2008 of three counts of violating the Connecticut Home Improvement Act, in contravention of General Statutes § 20–427(b)(5).   Each of the crimes for the Defendant was found guilty is a Class B misdemeanor.   The court sentenced the defendant on April 4, 2008 to a total effective sentence of nine months incarceration, and fines of $2,000.   The Defendant filed a timely appeal, and that appeal is currently pending before the Connecticut Appellate Court.   On October 19, 2011, the Defendant, who is representing himself at the trial court level, filed this Motion to Correct Illegal Sentence.   Hearings were conducted before the undersigned on this, and other post-trial motions filed by the Defendant, during December 2011.   The parties were allowed until February 2, 2012 to file post-hearing memoranda.

The Defendant raises five claims concerning the illegality of his sentence.   He writes in the motion:  “This sentence is illegal because;  1) it violates the Double Jeopardy clause. 2) it['s] not subject to Chapter 952 and consecutive sentences per C.G.S. 53a–37.   3) IF CGS. 20–427(b)(5) is indeed TWO statutory provisions and IF the Blockburger Test Applies, for Double Jeopardy purposes they are the same offense.   See State v. Yurch, 229 Conn. 516 (1994).  4) The Trial Court had no jurisdiction over the Defendant or the specific conduct alleged in the substitute information.   5) IF the specific alleged conduct is indeed correct in law and meets the definition of a ‘Home Improvement’ per C.G.S. 20–419(4) then the statute is both constitutionally void for vagueness and unconstitutionally vague as applied to the Defendant because he had inadequate notice of what was prohibited and was the victim o[f] arbitrary, discriminatory and standardless law enforcement.”

The extent of a trial court's authority to change a sentence after it has been imposed is not without boundaries.  “In the absence of statutory or constitutional provisions, the limits of [the trial court's] jurisdiction are delineated by common-law ․ Although the [trial] court loses jurisdiction over the case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence ․ [Practice Book] § 43–22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition ․ Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of [Practice Book] § 43–22, the court lacks jurisdiction to entertain it ․” (Citations omitted;  internal quotation marks omitted).  State v. Lewis, 108 Conn.App. 486, 488, 948 A.2d 389 (2008).

“Practice Book § 43–22 provides that ‘[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.’  ‘Practice Book rules do not ordinarily define subject matter jurisdiction.  General Statutes § 51–14(a) authorizes the judges of the Superior Court to promulgate rules regarding pleading, practice and procedure in judicial proceedings ․ Such rules shall not abridge, enlarge or modify any substantive right not the jurisdiction of any of the courts ․ Because the judiciary cannot confer jurisdiction on itself through its own rule-making power [Practice Book] § 43–22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun ․ Therefore, for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common-law, the court has jurisdiction to review ․ In accordance with [common-law] Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 43–22.   The first category has addressed whether the sentence was within the permissible range for the crimes charged ․ The second category has considered violations of the prohibition against double jeopardy ․ The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time ․ The fourth category has involved questions as to which sentencing statute was applicable.’  State v. Lawrence, 281 Conn. 147, 155–57, 913 A.2d 428 (2007).  ‘Accordingly, if a defendant's claim falls within one of these four categories, the trial court has jurisdiction to modify a sentence after it has commenced ․ If the claim is not within one of these categories, then the court must dismiss the claim for a lack of jurisdiction and not consider its merits.’  State v. Koslik, 116 Conn.App. 693, 698–99, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).”  State v. Casiano, 122 Conn.App. 61, 66–67, 998 A.2d 792 (2010).

Although the defendant took a timely appeal, and was initially at liberty after posting an appellate bond in the present matter, he was thereafter sentenced to a period of incarceration by another court in a different case.   In June 2011, the defendant requested that the undersigned revoke his appellate bond in the present case in order that he could receive credit towards his sentence in this matter while he was incarcerated for the other case.   The court granted the defendant's request.   If, in fact, the defendant has begun serving the sentence that was imposed in the present case, the court believes that it would have jurisdiction to entertain the first three claims cited in his motion to correct, but would lack jurisdiction over the fourth and fifth claims raised therein.  State v. Lewis, supra, 108 Conn.App. 486;  State v. Lawrence, supra, 281 Conn.147. However, in light of the defendant's pending appeal, and out of an abundance of caution, the court will rule on each of the five claims raised in the defendant's October 19, 2011 motion to correct illegal sentence.

FIRST DOUBLE JEOPARDY CLAIM

The defendant's first claim is that he is being punished more than once for the same offense, in violation of the constitutional prohibition against double jeopardy.²  The double jeopardy clause affords protection against multiple punishments for the same offense in the context of a single trial.  State v. Miranda, 260 Conn. 93, 118–19, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 244, 154 L.Ed.2d 175 (2002).

“Double jeopardy analysis in the context of a single trial is a two-step process.   First, the charges must arise out of the same act or transaction.   Second, it must be determined whether the charged crimes are the same offense.   Multiple punishments are forbidden only if both conditions are met ․ The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).  “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”   (Internal quotation marks omitted.)  State v. Nelson, 118 Conn.App. 831, 853, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).  “In conducting this inquiry, we look only to the relevant statutes, the information and the bill of particulars, not to the evidence presented at trial.”  Id. (citing State v. Denson, 67 Conn.App. 803, 808–09 (2002)).

The defendant was convicted by the jury on three counts of a substitute information that originally contained four counts of alleged home improvement crimes.³  The jury found the defendant guilty on two counts of offering to make home improvements without holding a current certificate of registration in violation of § 20–427(b)(5), and on one count of making home improvements without a current certificate of registration in violation of § 20–427(b)(5).⁴  It was not disputed during the trial that, at the time of the alleged offenses, the defendant did not hold a current certificate of registration as a home improvement contractor or home improvement salesman.   It was also undisputed that all of the alleged offenses involved the same homeowner, Nanci Harvey of Enfield, Connecticut, and the same residence.

In the first count of the substitute information, the state alleged “ ․ that on March 28, 2006 at 18 Lake Drive, Enfield, Richard A. Koslik offered to Nanci H. Schultz Harvey to make home improvements including removal of old countertop and sink, installation of new granite countertop and sink, installation of wall tiles, and installation of floor tiles with underlayment, for a total cash price in excess of $1,000, to a single family dwelling owned or occupied by Nanci H. Schultz Harvey in Enfield, Connecticut without having a current certificate of registration with the Department of Consumer Protection as a home improvement contractor or a home improvement salesman, in violation of Connecticut General Statutes Sec. 20–427(b)(5).”

In the third count of the substitute information, the state alleged:  “․ that on May 20, 2006 at 18 Lake Drive, Enfield, Richard A. Koslik offered to Nanci H. Schultz Harvey to make home improvements, including installation of a new garden window, installation of a new shower unit with walls in the second floor bathroom, and patching walls, for a total cash price in excess of $1,000, to a single family dwelling owned or occupied by Nanci H. Schultz Harvey in Enfield, Connecticut, without having a current certificate of registration with the Department of Consumer Protection as a home improvement contractor or home improvement salesman, in violation of Connecticut General Statutes Sec. 20–427(b)(5).”

In the fourth count of the substitute information, the state alleged “․ that from July 24, 2006, through August 1, 2006, at 18 Lake Drive, Enfield, Richard A. Koslik made home improvements, including removal of an existing countertop, installation of a kitchen sink, installation of a garden window, and installation of new flooring, for a total price in excess of $1,000, to a single family dwelling owned or occupied by Nanci H. Schultz Harvey in Enfield, Connecticut, without having a current certificate of registration as a home improvement contractor, in violation of Connecticut General Statutes Sec. 20–427(b)(5).”

The counts referred to above alleged three distinct acts of proscribed conduct by the defendant.   The substitute information charged that the defendant offered to make different home improvements for the complainant in March and May 2006 (on separate dates approximately seven weeks apart) and that on each occasion the defendant was not registered as either a home improvement contractor or as a home improvement salesman.   The substitute information also charged that the defendant performed home improvements for the complainant during July and August 2006, and was not registered as a home improvement contractor when he did so.  (Emphasis added.)   The language of § 20–427(b)(5) indicates that the General Assembly intended to prohibit both offers to make of home improvements, and the making of home improvements, by unregistered individuals.   Accordingly, although all the charges in this case involved the same complainant and the same home, different facts, and different acts by the defendant, were alleged in each of the three counts.   The court has conducted the mandated Blockburger analysis, and concludes that the defendant's claim of a double jeopardy bar, and related collateral estoppel and issue preclusion claims, are incorrect, because the crimes for which he was tried and convicted were separate and distinct offenses.⁵

The court is also unpersuaded by the Defendant's contention that he did not commit a separate offense in May 2006 because the agreement for additional work, was a so-called “change order,” arising out of the earlier transaction in March 2006.   The state's information alleged that the defendant offered to make home improvements in May 2006 that were different from the home improvements that he offered to make in March 2006.   The jury, after hearing the evidence, found the defendant guilty on two separate counts of offering to make home improvements.   The court believes that the “change order” issue raised in the motion to correct an illegal sentence involves an evidentiary determination that was made by the jury at trial, and is not grounds for a finding here that the defendant's sentence is patently illegal.

CONSECUTIVE SENTENCE CLAIM

The Defendant further contends that his sentence is illegal because it is not “subject to Chapter 952 and consecutive sentences per C.G.S. 53a–37.” ⁶  The Defendant maintains that because the section of the General Statutes that he was convicted under (§ 20–427(b)(5)) is not part of Chapter 952 (the General Statutes chapter that serves as the state's penal code), the consecutive sentence provisions of § 53a–37 are inapplicable to his case.   “Under General Statutes § 53a–37, the trial court is authorized to impose sentences on multiple counts either to run concurrently with each other or to run consecutively to each other.   The determination whether to impose concurrent or consecutive sentences is a matter within the sound discretion of the trial court.”  (Citation omitted, internal quotation marks omitted.)   State v. Polanco, 301 Conn. 716, 723, 22 A.3d 1238 (2011).

As noted previously, each of the crimes for which the defendant was convicted under § 20–427(b)(5) is a class B misdemeanor.  Section 20–247(c) specifies in pertinent part:  “ ․ any person who violates any provision of this section, except subdivision (8), shall be guilty of a class B misdemeanor ․” General Statutes § 53a–26 defines a misdemeanor as “[a]n offense for which a person may be sentenced to a term of imprisonment of not more than one year.”   Per General Statutes § 53a–36, the maximum sentence for a class B misdemeanor is ․ a term not to exceed six months.”  General Statutes § 53a–24 provides:  “The term “offense” means any crime or violation which constitutes a breach or any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction.   The term “crime” comprises felonies and misdemeanors.”

The language of General Statutes § 53a–37, which authorizes the court to impose consecutive sentences, does not contain any language suggesting that its scope is limited only to those crimes contained in Connecticut's Penal Code (Title 53a of Chapter 952 of the General Statutes).   Indeed, § 53a–37 specifically notes in part:  “When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each.”  (Emphasis added.)   Additionally, General Statutes § 53a–28, the statute which defines authorized sentences, appears to indicate that the penal code's sentencing provisions, including § 53a–37, apply to all statutory offenses.  Section 53a–28(a) notes:  “Except as provided in section 17a–699 and chapter 420b, to the extent that the provisions of said section and chapter are inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.”  (Emphasis added.)   Since the wording of this statute does not restrict its reach only to the crimes enumerated in Chapter 952, and specifically mentions “every person convicted of an offense,” this court concludes that it was statutorily authorized to impose consecutive sentences in this matter.

The Defendant's claim that he received illegally-imposed consecutive sentences is unsupported by case law.   Furthermore, it appears to be refuted by the plain language of Connecticut's sentencing statutes.   It fails for those reasons.

SECOND DOUBLE JEOPARDY CLAIM

The Defendant raises a second argument on double jeopardy grounds, contending that his three convictions constitute the same offense under the holdings of Blockburger v. United States, supra, and State v. Yurch, 299 Conn. 516, 641 A.2d 1387 (1994).

The court has addressed the Defendant's Blockburger claim above.   Those findings are incorporated by reference here in their entirety with respect to this claim.   The court has found that the counts set forth in the substitute information for which the defendant was tried alleged separate and distinct criminal acts.   Accordingly, under Blockburger, the double jeopardy prohibition against multiple punishments for the same act does not apply to the facts of this case.

The Defendant's reliance on the holding of State v. Yurch, supra, 299 Conn. 516, also appears to be misplaced.   Although that case involves a criminal prosecution under the Connecticut Home Improvement Act, and makes reference to the various offenses under the act with which the Defendant was charged, the decision does not directly address double jeopardy grounds, or the issue of whether or not a defendant may be charged both with offering to make, and making home improvements, in cases involving a single complainant.   Our Supreme Court's holding in Yurch dealt with a different issue, that pertained to the trial court's jury instructions.  Id.

This claim is also denied.

LACK OF JURISDICTION CLAIM

In both his Motion to Correct Illegal Sentence and his February 2, 2012 memorandum of Decision, the Defendant asserts that the court lacks jurisdiction over him, “and the subject matter alleged in the substitute information.”   The court is unclear about the gravamen of these claims, and it is not readily apparent what common-law or statutory authority the Defendant offers in support of them.   The court infers that the Defendant is basing these assertions on the claims of legal and factual innocence that he raised both at trial, and/or in his post-trial motions.   These include, inter alia, contentions by the Defendant:  that he never illegally offered to make or made any home improvements at the times alleged;  that he never illegally acted as a home improvement contractor or home improvement salesman at the times alleged;  that Deborah Haugabook, a registered home improvement contractor who did business as J.T. Home Improvement, offered to make, and made the home improvements for Nanci Harvey;  and that the Department of Consumer Protection made findings in a separate administrative proceeding that Deborah Haugabook, d.b.a. J.T. Home Improvement, was Nanci Harvey's contractor.⁷

The court has examined the relevant provisions of § 20–427(b)(5), and the specific factual allegations set forth in each of the three counts of the information with which the Defendant was charged and tried.   Given that the Defendant was charged under a legally-enacted statute, based upon allegations that alleged three separate and distinct criminal acts, the court finds that it had jurisdiction over the defendant, and the specific conduct for which he was tried.   The court finds that this claim for correction of an illegal sentence is not meritorious.

VOID FOR VAGUENESS CLAIM

The Defendant also asserts that his sentence is illegal because the statute under which he was charged and convicted is both unconstitutionally void for vagueness, and unconstitutionally vague as it is applied to him.

“A statute ․ [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process ․ Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly ․ A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity ․ To demonstrate that [a statute] is unconstitutionally vague as applied to [him], the [defendant] therefore must ․ demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement ․ [T]he void for vagueness doctrine embodies two central precepts:  the right to fair warning of the effect of a governing statute ․ and the guarantee against standardless law enforcement ․ If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since many statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties ․” (Internal citations omitted;  internal quotation marks omitted.)  State v. Fields, 302 Conn. 236, 260–61, 24 A.3d 1243 (2011).

“A party contesting a statute's constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt.”  State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S.Ct. 3118, 88 L.Ed.2d 301 (1985).   In State v. Lewis, 273 Conn. 509, 871 A.2d 986 (2005), the State appealed from a trial court's ruling that § 20–427(b)(8) of Connecticut's Home Improvement Act was unconstitutionally void for vagueness as it applied to the defendant.   In reversing the trial court's decision, our Supreme Court noted the following:  “Thus in order to challenge the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.”  (Citations omitted, internal quotation marks omitted.)  Id., 515.

The Defendant cited various cases in his post-hearing memorandum with respect to the issue of vagueness.   The court has carefully considered the Defendant's legal arguments.   But the Defendant has not demonstrated that the language of § 20–427(b)(5) is clearly and unequivocally void for vagueness.   Nor has he established that the statute is unconstitutionally vague as it is applied to him in this case, in light of the evidence at trial about his specific conduct.   Therefore, his claims that the sentence is illegal due to statutory and factual unconstitutional vagueness are denied.

ORDER

For the reasons cited herein, the Defendant's Motion to Correct Illegal Sentence is hereby DENIED in its entirety.   Dated this 2nd day of March 2012.

BY THE COURT:

Dyer, J.

FOOTNOTES

FN1. Practice Book § 43–22 provides:  “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”.  FN1. Practice Book § 43–22 provides:  “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

FN2. The Fifth Amendment to the United States Constitution states:  “ ․ nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ․”.  FN2. The Fifth Amendment to the United States Constitution states:  “ ․ nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ․”

FN3. During the trial, on January 23, 2008, the court granted a motion by the defendant to acquit the defendant on the second count of the substitute information, which had alleged a violation of General Statutes § 20–247(b)(5), Offering to Make Home Improvements Without Holding a Current Certificate of Registration.   The court found that the state had not proven sufficient evidence to support a finding of guilt beyond a reasonable doubt on one of the essential elements of that count..  FN3. During the trial, on January 23, 2008, the court granted a motion by the defendant to acquit the defendant on the second count of the substitute information, which had alleged a violation of General Statutes § 20–247(b)(5), Offering to Make Home Improvements Without Holding a Current Certificate of Registration.   The court found that the state had not proven sufficient evidence to support a finding of guilt beyond a reasonable doubt on one of the essential elements of that count.

FN4. Section 20–427(b)(5) provides:  “No person shall ․ offer to make or make any home improvement without having a current certificate of registration under this chapter.”.  FN4. Section 20–427(b)(5) provides:  “No person shall ․ offer to make or make any home improvement without having a current certificate of registration under this chapter.”

FN5. In making these findings, this court is mindful that it made reference at the sentencing hearing to a “mini-Blockburger test” and opted to impose only a fine on the Defendant with respect to the last count for which he was convicted.   However, the court did not find that count had merged with, or was the same offense as, one or both of the other two counts, as evidenced by the fact that the court imposed a separate penalty upon the defendant for that crime..  FN5. In making these findings, this court is mindful that it made reference at the sentencing hearing to a “mini-Blockburger test” and opted to impose only a fine on the Defendant with respect to the last count for which he was convicted.   However, the court did not find that count had merged with, or was the same offense as, one or both of the other two counts, as evidenced by the fact that the court imposed a separate penalty upon the defendant for that crime.

FN6. General Statutes § 53a–37 provides:  “When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentences or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence.   The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed.   When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each.   The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”.  FN6. General Statutes § 53a–37 provides:  “When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentences or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence.   The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed.   When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each.   The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”

FN7. In conjunction with these and other claims, the Defendant has also filed a separate post-trial pleading in which he seeks a new trial, and alleges that he has newly discovered evidence and that the State engaged in violations under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), at the time of the trial.   The court will address the request for a new trial, the allegations of new evidence, and the alleged Brady violations, in a separate memorandum of decision pertaining to that motion..  FN7. In conjunction with these and other claims, the Defendant has also filed a separate post-trial pleading in which he seeks a new trial, and alleges that he has newly discovered evidence and that the State engaged in violations under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), at the time of the trial.   The court will address the request for a new trial, the allegations of new evidence, and the alleged Brady violations, in a separate memorandum of decision pertaining to that motion.

Dyer, Richard W., J.